Academic

Teter on the Constitutionality of the Filibuster

By Lawrence Solum

Michael Teter (Pomona College) has posted Equality Among Equals: Is the Senate Cloture Rule Unconstitutional? (Marquette Law Review, Vol. 94, February 2011) on SSRN. Here is the abstract:

The U.S. Senate now operates as a sixty-vote chamber. Nearly every action, from passing significant legislation to consenting to routine executive nominations, requires support from a supermajority of senators. The basis for the sixty-vote Senate rests with Rule XXII, defining the standard for invoking cloture to end debate. A largely ignored provision of the Constitution renders Rule XXII suspect. Article I, Section 3 states, in part, "Each Senator shall have one Vote." Conventional wisdom misidentifies this clause as serving only the basic purpose of denoting a change from the state-based voting practiced under the Articles of Confederation. The history of the Senate?s creation reveals, however, that the provision is better read as meeting the Framers? goal of devising an active, effective upper chamber, and that they instilled in the ?Each Senator? language the principles of equality and representation. Relying on the Supreme Court?s one person, one vote jurisprudence as a roadmap, the article argues that because Rule XXII serves to disproportionately weight its members? votes, it violates Article I, Section 3?s command of senatorial voting equality.

Full post as published by Legal Theory Blog on January 19, 2011 (boomark / email).